Zarda v. Altitude Express (USA)

The U.S. Department of Justice (“DOJ” or “the department”) filed an amicus brief in the U.S. Court of Appeals for the Second Circuit in Zarda v. Altitude Express, a private dispute between an employee (actually the executors of his estate as he is now deceased) and his employer stating “The United States submits that the en banc Court should reaffirm its settled precedent holding, consistent with the longstanding position of the Department of Justice, that Title VII does not reach discrimination based on sexual orientation.”

Although the Equal Employment Opportunity Commission (“EEOC”) filed it’s own brief in support of Zarda, the DOJ further notes that while “the Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers, 42 U.S.C. 2000e-5(f)(1), and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade. ”

The department’s filing is an unusual example of the federal government weighing in on a private lawsuit. Although the department is not a party in the suit, the brief asserts “The United States thus has a substantial and unique interest in the proper interpretation of Title VII.”

The brief concludes, “This Court should reaffirm its precedent holding that Title VII does not prohibit discrimination because of sexual orientation.”